UPDATE: “Further work is still needed” Council says after debate on EU patent package

The AmeriKat gargling, yawning,
or screaming about the lack of
televised debates - take your pick

Happy Tuesday Morning, from the AmeriKat! In the early hours of the morning while the AmeriKat was gargling her 30th glass of salt water in London, someone in Brussels was busy putting together the press release after the first day of meetings of the Competitiveness Council (note -the press release is marked "provisional version"). An earlier press conference given by Polish Deputy Prime Minister Pawlak and Commissioner Barnier gave the impression, at least to this Kat, that an agreement on everything save for the location of the court had been achieved. The press release however gave a more measured view stating that

 “The compromise was broadly accepted in substance, but the debate showed that further work is still needed. The Polish Presidency is committed to take the work forward with a view to reaching agreement on the creation of a unified patent court before end 2011” 

The press conference and later press release followed a policy debate by EU ministers in charge of their Member States intellectual property files (for the UK - Baroness Wilcox). The press release states that the debate was

"...on the creation of a unified patent litigation court, as a part of a package aimed at establishing a patent system with unitary effect that ensures uniform protection for inventions across Europe, together with the corresponding translation arrangements." 

A EU t-shirt, for no other reason
than the AmeriKat is bored
of pictures of EU flags

The AmeriKat may be an being an over-analytical lawyer, but does that mean that they only debated the court and translational arrangements, not the patent protection proposal or that they may have also debated the patent protection element? She is still not 100% clear what was and was not debated by EU Ministers. However, the press release went on to set out “the essential elements of the compromise” [“What are the non-essential elements of the compromise”, wonders the AmeriKat, "and does this mean they are subject to compromise or have been compromised?"]. These were as follows:

1. The seats of the Central Division of the Court of 1st Instance, the Court of Appeal and the Patent Arbitration Centre  

 Several proposals have been made by member states interested in hosting the seats.

2. The financial contribution of the member states hosting a local division, a regional division, the Central Division or the Court of Appeal  

The host member state would provide for the necessary facilities, equipment and, for the initial period, the management of the administrative staff. 

3. Other financial contributions of the member states  

While the objective should be that the Unified Patent Court becomes self financing over time, financial contributions will be required in the setting up phase based of a balanced and transparent formula.

4. Language of proceedings  

While the principal should be maintained that the language of proceedings of a local division can be changed only with the agreement of both parties, a party could address a request to the President of the Court in order to change the language of proceedings for reasons of convenience and fairness.  

Who to sue and where to sue - you decide...

5. Actions to be brought to the central division  

The possibility to enhance the role of the central division and give parties the choice to bring actions from infringements concerning a number of member states before the central division instead of bringing them before a local or regional division. Under the compromise the parties would have the choice to bring an infringement action before the central division if the defendant is domiciled outside the EU.  

6. Number of ratifications required for the entry into force  

There is general consensus that the Unified Patent Court should enter into force once a minimum number of member states have ratified the Agreement.  

7. Transitional period  

A transitional period will be fixed for "classical" European patents without unitary effect during which actions can still be brought before the national court.  

8. Revision clause  

A range of provisions would have to be reviewed by the administrative committee in order to improve the functioning, efficiency and cost effectiveness of the Unified Patent Court and the quality of its judgements. 

Like the revolution, the unitary patent
debates will not be televised....

The press release again refers to what the Amerikat has previously reported – a provisional agreement has been achieved between the Council and the Parliament which we believe to be this draft compromise. According to the press release, the European Parliament is expected to vote on the two regulations - the creation of unitary patent protection and the translation arrangements - in early 2012. This draft compromise points to the unitary protection element not needing to be debated.  However, the Amerikat would like to know exactly what was debated last night and what was capable of being televised and what was not.  The AmeriKat is concerned that this entire process and debate has been undertaken behind closed doors.  It may be the tonsils talking, but she is concerned that a curious side effect of the EU no longer being a signatory is that under the cloak of "its an international agreement" it has enabled Member States to debate swaths of this patent legislation, legitimately or not (who knows?), away from the scrutiny of the public.

So what do readers think?  Is there some more breathing room to try and resolve some of the other concerns, or is this really only a debate about who gets the Central Division?   Should we be getting more information about what was being debated by the Council last night?  Does this press release tell us enough?